Attorney General Issues Opinion on Ethics Issues

Published: August 7, 2009

Sullivan Hopes to Begin ‘Serious Conversation’ Among Alaskans

Aug. 5, 2009

Anchorage, Alaska– Attorney General Dan Sullivan today released an official opinion on issues concerning the Executive Branch Ethics Act, making recommendations on ways to enhance the integrity of the process and concluding that public officials who are exonerated in ethics proceedings can be reimbursed for their legal expenses.

Sullivan said he hopes that his opinion, which includes recommendations on amendments to the ethics act, will spark a “serious conversation” among Alaskans about how the law is working.

“Our research and analysis show that the structuring and implementation of ethics acts require a balance of very important and sometimes competing interests,” Sullivan said.

“Going forward, we believe our recommendations strike a balance between providing citizens the tools to hold public officials accountable and implementing an ethics process that does not discourage well-qualified Alaskans from serving in state government.”

The ethics act currently requires confidentiality for a complaint against a public official unless the official decides to make it public, or unless the attorney general or independent counsel for the personnel board initiates formal proceedings by issuing a public accusation. (Complaints against the governor, lieutenant governor and attorney general are handled by independent counsel for the personnel board, rather than by the attorney general.)

Despite this provision, a confidential recommendation by the personnel board’s independent investigator was leaked in a recent case, inappropriately publicizing a matter that has not been resolved and leading to erroneous news reports that there already had been a finding of guilt.

“The integrity of the process can be better protected if investigations remain confidential until attempts to resolve the issues through settlement or alternative corrective action are completed,” Sullivan said. “We recommend changing the law so that a complainant does not receive a report finding probable cause of a violation if negotiations are ongoing between the public official and the state or independent counsel.”

The opinion sets forth ways to guard against abuse of the act. For example, the personnel board could be given authority to order reimbursement of fees and costs from complainants who trigger investigations based on allegations that they know to be false.

The attorney general’s opinion also concludes that executive branch agencies have authority to reimburse the legal expenses that public officers incur in defending against ethics complaints, if four conditions are met:

--the public officers are exonerated;

--the officers acted within the parameters of their employment;

--the incurred expenses are reasonable; and

--appropriate sources of funds are available for such reimbursements.

“The state routinely defends public officers against claims of inappropriate conduct or wrongdoing, such as the Department of Law’s recent and successful defense of three state troopers against a claim under a federal civil rights act,” Sullivan said. “The state also offers legal representation or reimbursement to public officials, including those in the judicial branch, when complaints of professional misconduct are filed against them with various professional conduct commissions.

“The key legal question is whether there is a public purpose in extending this policy to officials accused of violating the ethics act. We conclude that there clearly is. Citizens may be reluctant to serve in state government – or be inhibited in performing their official duties – if they must bear the cost of defending themselves against unfounded ethics charges related to their state duties.”

Regulations to set the policy for reimbursement of legal costs for exonerated officials are being drafted by the Department of Law. Information obtained from the National Association of Attorneys General suggests that payment of legal costs for exonerated public officials is a common practice throughout the country.

For reasons outlined in his opinion, Sullivan concludes that it would be problematic and a potential conflict of interest for attorneys in the Department of Law to actually defend public officers against ethics complaints.

Today’s opinion is the culmination of research that began shortly after Sullivan took office as attorney general in June. It also responds to a request last month by incoming Governor Sean Parnell for suggestions on how to end breaches of confidentiality with ethics complaints.